SMU Law Review
Volume 44
2016
Corrective Action under the Resource
Conservation and Recovery Act
Joseph F. Guida
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Joseph F. Guida, Corrective Action under the Resource Conservation and Recovery Act, 44 Sw L.J. 1331 (2016)
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CORRECTIVE ACTION UNDER THE
RESOURCE CONSERVATION AND
RECOVERY ACT
Joseph F. Guida *
HE enactment of the Hazardous and Solid Waste Amendments of
19841 (HSWA) received a great deal of attention from both industry
and environmentalists. The new corrective action powers conferred
upon the U.S. Environmental Protection Agency (EPA) did not share the
limelight with such starring issues as the land disposal ban, 2 statutory termination of "interim status,"' 3 and federal regulation of underground storage
tanks. 4 Nonetheless, the corrective power granted to the EPA by HSWA 5,
nevertheless, is a veritable blockbuster in the nation's environmental theater.
These new corrective action powers also occupy a significant void which
previously existed in hazardous waste management regulation.
Prior to the enactment of the corrective action provisions, the Resource
Conservation and Recovery Act (RCRA) 6 was primarily aimed at prevention of future problems. 7 Although the Comprehensive Environmental Re* Partner, Gardere & Wynne, Dallas, Texas; B.A., with Honors, 1976, M.A., J.D. 1979,
University of Virginia. Member, Texas, Ohio, and District of Columbia Bars; Section of Natural Resources, Energy, and Environmental Law, American Bar Association. The views expressed herein are solely those of the author and do not represent the position of any other
person or entity. The author expresses his appreciation to Ms. Rhonda B. Davis for her expert
secretarial assistance in the preparation of this article.
1. Pub. L. No. 98-616, 1984 U.S. CODE CONG. & ADMIN. NEWS (98 Stat.) 3224
(amending 42 U.S.C. § 6901 (1982)). The EPA adopted rules codifying the statutory changes.
See Hazardous Waste Management System, 40 C.F.R. §§ 260-62, 264-66, 270-71, 280 (1989).
2. Resource Conservation and Recovery Act of 1976, Pub. L. No. 94-580, 90 Stat. 2795
(codified as amended at 42 U.S.C. §§ 6901(b)(7), 3004(d),(e),(f),(g), 6924(d),(e),(f),(g) (Supp.
1989)).
3. See id.§ 6925(e)(2) (Supp. 1989).
4. See id.
§§ 6991-6991i (Supp. 1989). As was the case with the general hazardous waste
management regulations, the EPA required several years to publish final rules governing the
underground storage tank program. Technical Standards and Corrective Action Requirements for Owners and Operators of Underground Storage Tanks, 40 C.F.R. § 280 (1989).
5. Resource Conservation and Recovery Act of 1976, Pub. L. No. 94-580, 90 Stat. 2795
(codified as amended at 42 U.S.C. §§ 6924(u),(v) 6928(h) (Supp. 1989)). See infra text accompanying notes 60-62.
6. Pub. L. No. 94-580, 90 Stat. 2795 (1976), codified as amended at 42 U.S.C. §§ 69016987 (1988). 42 U.S.C. §§ 6921-6934 (1982 & Supp. 1989) establishes the federal regulatory
program governing hazardous waste management. RCRA was an amendment to the Solid
Waste Disposal Act, Pub. L. No. 89-272, 1965 U.S. CODE CONG. & ADMIN. NEWS (79 Stat.)
992 (SWDA) and is codified as part of the SWDA. Because almost all of the statutory sections
cited in this article fall within Subtitle C, however, the acronym "RCRA" will be used in
connection with code citations instead of the acronym "SWDA."
7. See EPA's discussion of inactive facilities in its initial promulgation of interim status
1331
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sponse, Compensation, and Liability Act (CERCLA) of 19808 addressed
problems inherited from the past, it primarily focused on the most serious
instances of endangerment to human health or the environment. 9 The new
corrective action provisions of RCRA allow the EPA to address, through
permits or administrative orders, past "sins" at those facilities most likely to
suffer from some form of contamination,10 without having to demonstrate an
exceptional hazard to human health or the environment.
Since the EPA's administrative implementation of its statutory corrective
action powers has thus far occurred mainly through the issuance of limited
policy statements, and, thus, remains at an early stage, I' no doubt more attention will be directed to the legal underpinnings of RCRA corrective action responsibilities. 12 This article discusses RCRA's corrective action
provisions and reviews related case law and administrative developments
with primary emphasis on corrective action orders. In addition, the article
briefly focuses on some interesting, but as yet unanswered, questions concerning who ought to be liable for corrective action obligations. Finally, the
standards for hazardous waste treatment, storage, and disposal facilities. 45 Fed. Reg. 33,153,
33,170 (May 19, 1980). American Iron & Steel Inst. v. United States E.P.A., 886 F.2d 390,
393 (D.C. Cir. 1989); See United Technologies Corp. v. United States E.P.A., 821 F.2d 714,
717 (D.C. Cir. 1987).
8. 42 U.S.C. §§ 9601-9675 (1982).
9. Through the establishment of the National Priorities List (NPL), CERCLA § 105, 42
U.S.C. § 9605 (1982) provides for prioritization of response actions under CERCLA § 104, 42
U.S.C. § 9604 (1982), based upon the hazards posed by specific sites. Similarly, CERCLA
§ 106, 42 U.S.C. § 9606 (1982), provides the President with the authority to order or undertake immediate response action in situations where there is a release which may cause "an
imminent and substantial endangerment to the public health or welfare or the environment
because of an actual or threatened release of a hazardous substance from a facility..." Id.
There are sites, however, where CERCLA and RCRA corrective action authorities may overlap. The EPA has adopted a policy of deferring site listings on the NPL where the site is
subject to RCRA Subtitle C corrective action authorities and, among other grounds, the
owner/operator (1) has not declared bankruptcy, or (2) has not lost authorization to operate
and expressed unwillingness to undertake RCRA corrective action, or (3) has not had a clear
history of unwillingness to undertake corrective action regardless of continued authorization
to operate. 54 Fed. Reg. 41,004-06 (October 4, 1989).
10. As discussed in more detail below, facilities which are required to have interim status
are those at which hazardous waste treatment, storage, or disposal is occurring, or has occurred, on-site. The EPA recently observed that "the RCRA regulated universe consists of
4,700 hazardous waste treatment, storage, and disposal facilities. Within these facilities are
approximately 81,000 waste management units, most of which are units that have received
hazardous waste and from which contamination may have spread to the soil and groundwater." ENVIRONMENTAL PROTECTION AGENCY, OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE, THE NATION'S
HAZARDOUS WASTE MANAGEMENT
PROGRAM AT A
CROSSROADS: THE RCRA IMPLEMENTATION STUDY, EPA Doc. No. 205-0001 at 7 (1990)
[hereinafter RCRA IMPLEMENTATION STUDY].
11. See RCRA IMPLEMENTATION STUDY at 76-77.
12. The EPA recently issued proposed rules implementing its corrective action authorities. Corrective Action for Solid Waste Management Units (SWMUs) at Hazardous Waste
Management Facilities, 55 Fed. Reg. 30, 798 (1990) (to be codified at 40 C.F.R. § 264, Subpart
S). Some of the Agency's prior legal interpretations should be clarified, or at least amplified, in
that proceeding. For useful earlier analyses of the HSWA corrective action authorities, see
Bourdeau, Corrective Action Authorities under RCRA, 14 Chem. Waste Lit. Rept. 1104 (1987);
Bourdeau, The Corrective Action Requirements of the 1984 RCRA Amendments, 11 Chem.
Waste Lit. Rept. 201 (1986).
1991]
CORRECTIVE ACTION
1333
article examines whether there is, or should be, a right of contribution for
the costs associated with government-compelled corrective action.
I.
OVERVIEW OF THE RESOURCE CONSERVATION AND RECOVERY ACT
Several years after a national crescendo of environmental consciousness
culminated in extensive improvements in legislation governing air and water
pollution control, 13 Congress, in 1976, enacted a major amendment to the
Solid Waste Disposal Act, 14 known as the Resource Conservation and Recovery Act (RCRA). The EPA, however, did not adopt regulations to implement the provisions of the Act until 1980,15 and then only after several
groups and the State of Illinois filed lawsuits to compel the agency to adopt
16
these regulations.
RCRA generally focuses on the problems associated with handling and
disposal of the billions of tons of discarded material generated in this country each year, from household trash, to sewage sludges, to highly complex
chemical substances. 17 Although some provisions of RCRA relate to nonhazardous waste disposal, 18 RCRA is primarily directed towards the handling and disposal of hazardous wastes.' 9 In 1980, the EPA estimated that
almost sixty million metric tons of hazardous wastes were generated during
the preceding year. 20 For years, only a small percentage of these wastes
were disposed of in what the Agency considered an environmentally sound
21
manner.
Subtitle C of RCRA embodies the fundamentals of the federal hazardous
waste management program. Section 300122 provides two ways in which a
waste will be considered "hazardous." First, a waste will be classified as
"hazardous" where the EPA has specifically listed the wastes as hazard24
23
By regulation, the EPA has listed a number of wastes as hazardous.
OUS.
The EPA will also classify a waste as "hazardous" if it exhibits one or more
13. See Clean Air Amendments of 1970, Pub. L. No. 91-604, 84 Stat. 1676 (codified at 42
U.S.C. §§ 1857, 7401-7642 (1990)) Federal Water Pollution Control Act Amendments of
1972, Pub. L. No. 92-500, 86 Stat. 816, (codified at 33 U.S.C. §§ 1251-1376 (1987)).
14. See RCRA, 42 U.S.C. §§ 6901-6987. See supra note 6 and accompanying text.
15. On February 26, 1980, the EPA promulgated standards for generators and transporters of hazardous waste. 40 C.F.R. §§ 262, 263 (1989). The EPA also issued a public notice
establishing procedures for filing a notice of hazardous waste activity under RCRA. See 42
U.S.C. § 6930 (1990).
16. Illinois V. Costle, 12 Env't Rep. Cas. (BNA) 1597 (D.D.C. 1979).
17. In the House Report which accompanied the passage of RCRA, the House observed
that, during the preceding few years, the amount of discarded materials had grown to approximately 4 billion tons per year and that an annual increase of 8 percent was anticipated over the
next decade. H. R. REP. No. 94-1491, 94th Cong., 2d Sess. 3, reprintedin 1976 U.S. CODE
CONG. & ADMIN. NEWS 6238, 6240.
18. See RCRA, 42 U.S.C. §§ 6941-6949a (1990).
19. See supra note 17.
20. 45 Fed. Reg. 33,084 (1980). See generally ENVIRONMENTAL PROTECTION AGENCY,
OFFICE OF WATER & WASTE MANAGEMENT,
WASTES, EPA Doc. No. SW-826 (1980).
21. 45 Fed. Reg. 33,084 (1980).
22. 42 U.S.C. § 6921 (1990).
23. Id.
24. See 40 C.F.R. §§ 261.31-261.33 (1989).
EVERYBODY'S PROBLEM:
HAZARDOUS
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of the four characteristics which the EPA believes is indicative of
25
hazardousness.
Of course, for a material to be considered a hazardous waste, it must first
be a waste. Over the years, much confusion has reigned over the status of
certain materials that are not disposed of, but, instead, are either reused,
recycled, or reclaimed, either by the generator itself or by some other party.
EPA took the position that, because of the way Congress defined the term
"solid waste" in RCRA, 26 the EPA has jurisdiction to regulate so-called
27
recycled materials.
The EPA established a "cradle-to-grave" waste tracking system at the
heart of the hazardous waste regulatory program promulgated pursuant to
RCRA. 28 As set forth in the implementing regulations, RCRA generally
requires notification and waste manifesting for regulated hazardous waste
generation, transportation, treatment, storage, and disposal. 29 The waste
manifesting procedure is the centerpiece of this system. 30 In addition, the
regulations adopted by the EPA pursuant to RCRA establish an array of
detailed operating requirements for firms that generate, transport, treat,
store, or dispose of hazardous wastes. 3 1 Treaters, storers, and disposers of
hazardous waste must obtain a permit. 32 Congress recognized that, after the
enactment of RCRA, the EPA would adopt rules covering operational standards and permit requirements, and lead time would be associated with
25. See 40 C.F.R. §§ 261.21-.24. Originally, these four characteristics were ignitability,
corrosivity, reactivity, and what was termed EP toxicity. Id. Recently, the so-called Toxicity
Characteristic, with its accompanying Toxicity Characteristic Leaching Procedure (TCLP),
was substituted for EP toxicity. 55 Fed. Reg. 11,798 (1990) (to be codified at 40 C.F.R.
§ 261.24).
26. The statute provides that the term "solid waste" means:
any garbage, refuse, sludge from a waste treatment plant, water supply treatment plant, or air pollution control facility and other discarded material, including solid, liquid, semisolid, or contained gaseous material resulting from
industrial, commercial, mining, and agricultural operations, and from community activities, but does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial
discharges which are point sources subject to permits under section [402 of the
Federal Water Pollution Control Act, as amended (33 U.S.C.S. § 1342)], or
source, special nuclear, or by-product material as defined by the Atomic Energy
Act of 1954, as amended (68 Stat. 923)[42 U.S.C.S. §§ 2011 et. seq.].
42 U.S.C. § 6903(1990).
27. Industry has long and bitterly contested the EPA's authority and approach in regulating recycled materials. See American Mining Congress vs. EPA, 824 F.2d 1177 (D.C. Cir.
1987) (holding that EPA had acted in contravention of Congress' intent by regulating inprocess secondary materials). See generally Gaba, Solid Waste and Recycled Materials under
RCRA: SeparatingChafffrom Wheat, 16 ECOLOGY L.Q. 623 (1989) (arguing EPA's approach
is basically sound, but suggesting several improvements to existing regulations).
28. Some people with poetic flair call it a "womb-to-tomb" waste tracking system. See
RCRA, §§ 42 U.S.C. § 6930 (1990) (notification of hazardous waste management activity); 42
U.S.C. § 6922 (1990) (generator manifesting); 42 U.S.C. § 6923 (1990) (transporter manifesting); 42 U.S.C. § 6924 (1990) (treatment, storage, and disposal facility manifesting). The
EPA's rules implementing the manifest system are set forth at 40 C.F.R. §§ 262.23 (generator), 263.20 (transporter), and 265.71 (treatment, storage, and disposal facilities) (1989).
29. See supra note 28.
30. See supra note 28.
31. See 40 C.F.R. §§ 262-265 (1989).
32. RCRA, 42 U.S.C. § 6925 (1990); 40 C.F.R. §§ 264, 265 (1989).
1991]
CORRECTIVE ACTION
1335
processing permit applications. 33 In order to avoid a situation where existing hazardous waste treatment, storage, or disposal facilities (TSDFs)
would have to stop operations, Congress provided a special "interim status"
for existing operations to continue pending the receipt of a permit. 34 If existing operations meet the statutory prerequisites for interim status, 35 and
comply with interim operating standards prescribed by rule, 36 these operations remain authorized. Should a facility later be found unfit to continue
operating, however, its application for a final permit can be denied by the
37
permitting authority, and the facility will have to shut down.
II.
PRE-HSWA CORRECTIVE ACTION AUTHORITY UNDER RCRA
In 1982, EPA promulgated a program for monitoring and remedying
groundwater releases from regulated hazardous waste management units at
TSDFs. 38 The following facilities were affected by these requirements: surface impoundments, waste piles, land treatment units, and landfills. 39 Compared to the expanded corrective action authorities conferred upon the EPA
under HSWA, this program was relatively narrow. It focused only on units
that were regulated and required corrective action only up to property
boundaries. 4° The 1982 program also focused solely upon site conditions
that impacted groundwater to the exclusion of other environmental media. 4 1
This pre-HSWA corrective action program will continue to affect corrective action associated with regulated units. 42 As this program currently
33. See EPA v. Environmental Waste Control, Inc., 710 F. Supp. 1172, 1182 (N.D. Ind.
1989).
34. 42 U.S.C. § 6925(e) (1990). For a useful discussion of the steps required to secure
interim status, see Northside Sanitary Landfill, Inc. v. Thomas, 804 F.2d 371, 373-74 (7th Cir.
1986).
35. RCRA, 42 U.S.C. § 6925(e)(1) (1990), provides in pertinent part:
Any person who (A) owns or operates a facility required to have a permit under
this section which facility (i) was in existence on November 19, 1980, or (ii) is in
existence on the effective date of statutory or regulatory changes under this
chapter [42 U.S.C.S. §§ 6901 et. seq] that render the facility subject to the requirement to have a permit under this section, (B) has complied with the requirements of section [3010(a) 42 U.S.C.S. § 6930(a)], and (C) has made an
application for a permit under this section shall be treated as having been issued
such permit until such time as final administrative disposition of such application is made....
36. 40 C.F.R. § 265 (1989). See also RCRA, 42 U.S.C. § 6925(d) (1990).
37. RCRA, 42 U.S.C. § 6925(c) (1990). HSWA forced the EPA, or an authorized state,
to act promptly on permit applications by providing so called "hammer" dates by which the
EPA or the state was to act on permit applications submitted prior to November 8, 1984. See
42 U.S.C. §§ 6925(c)(2)(A), (B). Interestingly enough, RCRA does not appear to be explicit
as to whether interim status continues at facilities for which the EPA or a state issues neither a
permit approval nor a denial by the "hammer" dates.
38. The EPA also required reporting of releases from permitted units. See 40 C.F.R.
§§ 264.98 - .99 (1989).
39. Id.
40. See the preamble discussion concerning the scope of the corrective action authority
prior to HSWA at 47 Fed. Reg. 32,274, 32,311 (1982). See id. 32,299 (1982).
41. Id.
42. The EPA plans to propose revisions to the existing subpart F regulations to harmonize them with its HSWA corrective action program. See 55 Fed. Reg. 30,798, 30,853-54
(1990).
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stands, corrective action is the final phase of a three-phase program for addressing releases of hazardous wastes and hazardous constituents to groundwater. The first stage in the program is detection monitoring. 43 If a release
is confirmed by detection monitoring, the second phase is triggered and the
owner or operator of the facility must characterize the nature and extent of
contamination." After completing this second phase, the owner or operator
must then treat or remove the contamination. 45 The rules provide that
clean-up standards are to be established on the basis of site-specific groundwater protection requirements. 46 These requirements can be background
levels, maximum contaminant levels for fourteen constituents established
pursuant to the Safe Drinking Water Act, 47 or "alternate concentration
limits." 48
III.
NEW HSWA CORRECTIVE ACTION AUTHORITIES
The new corrective action authorities established under HSWA, are
sweeping and ambiguous, and dwarf the pre-HSWA corrective action program. These authorities were enacted in three different sections of the statute.49 Two of these sections, section 3004(u) and section 3004(v), will be
implemented through the EPA permitting process.5 0 The third, section
3008(h), empowers the EPA to require corrective action through an administrative order.5 ' The authorities granted under section 3008(h) are the principal focus of the discussion presented in the final portion of this Article.
Even though HSWA was enacted in 1984, the EPA has failed to adopt
rules implementing these authorities, with the exception of two rudimentary
codification rules,5 2 and rules establishing procedures for agency hearings on
the issuance of unilateral corrective action orders.5 3 As mentioned earlier
the EPA, to date, has implemented HSWA's corrective action program
largely by policy statements and technical guidance documents.5 4 This ap43. Owners and operators must monitor groundwater at the downgradient edge of the
waste management boundary for indicator parameters or constituents that indicate the likelihood of a release. 40 C.F.R. § 264.98 (1989). See summary discussion of the program at 55
Fed. Reg. 30,798, 30,800.
44. See 40 C.F.R. § 264.99 (1989).
45. 40 C.F.R. § 264.100 (1989).
46. 40 C.F.R. §§ 264.92, 264.93 (1989).
47. 42 U.S.C. §§ 300f-300k (1990).
48. 40 C.F.R. § 264.94 (1989). Alternate concentration limits are standards that must be
protective of human health and the environment, but which take into account certain site
specific circumstances that justify less stringent cleanup levels. 40 C.F.R. § 264.94(b) (1989).
49. See 42 U.S.C. § 6924; 42 U.S.C. § 6924(u); 42 U.S.C. § 6928(h) (1990).
50. This approach provides the EPA with a great deal of leverage to secure corrective
action facilities not only at interim status facilities that are seeking final permits, but also
certain interim status facilities that already have been closed in accordance with regulations.
51. RCRA, 42 U.S.C. § 6928(h) (1990).
52. See supra note 1.
53. 40 C.F.R. Parts §§ 22, 24 (1989). The D.C. circuit court upheld these rules in the face
of a constitutional due process challenge. See Chemical Waste Management vs. EPA, 873
F.2d 1477 (D.C. Cir. 1989).
54. See PRELIMINARY OFFICE OF SOLID WASTE AND EMERGENCY RESPONSE (OSWER)
GUIDANCE: RCRA SECTION 3008(H), THE INTERIM STATUS CORRECTIVE ACTION AuTHORITY (1985) [hereinafter "THE INTERIM STATUS CORRECTIVE ACTION AUTHORITY"];
CORRECTIVE ACTION
1991]
1337
proach appears to leave much of the program to be developed on an ad hoc
basis by regional and headquarters enforcement personnel. 55
The EPA, however, has been developing proposed rules, which, when
promulgated, will fill much of the regulatory vacuum. The Agency, in 1986,
proposed rules for demonstration of financial responsibility for corrective
action as required by Section 3004(u). 5 6 Recently, after almost a two-year
delay caused by the Office of Management and Budget's (OMB) cost-related
objections, the EPA also proposed a rule intended to govern site investigations, corrective measures studies, and corrective action selection under Section 3004(u).5 7 Those rules are also intended to serve as guidelines in the
EPA's implementation of the Section 3008(h) program.58 Given the continuing controversy between the EPA and OMB, however, and the EPA's commitment to reconsider its economic impact analysis, it may be two years or
more before final corrective action rules are promulgated. 59
A.
Statutory Corrective Action Provisions
Section 3004(u) provides as follows:
Standards promulgated under this section shall require, and a permit
issued after the date of enactment of the Hazardous and Solid Waste
Amendments on 1984 [enacted Nov. 8, 1984] by the Administrator or a
State shall require, corrective action for all releases of hazardous waste
or constituents from any solid waste management unit at a treatment,
storage, or disposal facility seeking a permit under this subtitle [42
U.S.C.S. §§ 6921 et. seq], regardless of the time at which waste was
placed in such unit. Permits issued under section 3005 [42 U.S.C.S.
§ 6925] shall contain schedules of compliance for such corrective action
(where such corrective action cannot be completed prior to issuance of
the permit) and assurances of financial responsibility for completing
such corrective action. 6°
U.S. ENVIRONMENTAL PROTECTION AGENCY, OFFICE OF SOLID WASTE AND EMERGENCY
RESPONSE, NATIONAL RCRA CORRECTIVE ACTION STRATEGY (undated) reprinted at 17
Env. Rep. (BNA) 1068 (1986) [hereinafter "NATIONAL RCRA CORRECTIVE ACTION STRATEGY"]; OSWER Directive 9502.00-5 on Definition of SWMU under S3004(u), July 24, 1987;
OSWER Directive 9901.3 on Public Involvement in RCRA Section 3008(h) Actions, May 5,
1987; Technical documents listed at 55 Fed. Reg. 30,798, 30,802 (1990)(to be codified at 40
C.F.R. §§ 264, 265, 270, 271). See generally Kastner, RCRA Corrective Action: EPA's Emerging Plan To Clean Up Waste Facilities,4 ToxiCs L.R. (BNA) 299 (1989) (presenting an excellent discussion of the existing regulatory regime).
55. See RCRA IMPLEMENTATION STUDY, supra note 10, at 78.
56. 51 Fed. Reg. 37, 854 (October 24, 1986) (to be codified at 40 C.F.R. §§ 264, 270, 271).
Interestingly enough, the EPA routinely has imposed financial responsibility obligations in the
context of § 3008(h) orders, but that section, unlike § 3004(u), provides no explicit authority
for such obligations.
57. See CorrectiveAction Rule Delayed Again As Top Officials Negotiate Over Cost Estimates, 21 Env't Rep. (BNA) 286 (1990). The proposed rule was published at 55 Fed. Reg.
30,798 (1990), (to be codified at 40 C.F.R. § 264, Subpart S). For a discussion of the basic
elements of the proposed rule see Spracker, The Proposed RCRA Corrective Action Rule, 20
Chem. Waste Lit. Rept. 739 (1990).
58. 55 Fed. Reg. 30,789, 30,802.
59. See Corrective Action Rule For RCRA Sites Still Far From FinalApproval, Officials
Say, 21 Env. Rep't (BNA) 427 (1990).
60. 42 U.S.C. § 6924(u) (1990).
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Section 3004(v) amends the pre-HSWA corrective action program. The
provision basically provides that corrective action should be taken beyond a
facility boundary when necessary to protect human health and the environment, unless the owner or operator of the facility concerned can justify not
doing so. The pre-HSWA authority required corrective action at the "point
of compliance" which, at a maximum, was the facility boundary. 6 1
Section 3008(h) provides EPA similar authority, although the language is
different in some interesting respects:
Whenever on the basis of any information the Administrator determines that there is or has been a release of hazardous waste into the
environment from a facility authorized to operate under section
[3005(e) of this subtitle (42 U.S.C.S. §§ 6921 et seq.)] the Administrator
may issue an order requiring corrective action or such other response
measure as he deems necessary to protect human health or the environment or the Administrator may commence a civil action in the United
States district court in the district in which the facility is located for
appropriate relief, including a temporary or permanent injunction. 6 2
In implementing the statutory authorities, the EPA adopted a more expansive view of its corrective action jurisdiction under section 3008(h). 63 In
justifying its more expansive view of section 3008(h), the EPA sometimes
emphasizes similarities between the two sections and other times draws
sharp distinctions between them. 64 The relationship between these sections
bears upon, among other things, the issue of exactly what Congress intended
to do when it gave the EPA the power to administratively order corrective
action under section 3008(h). Indeed, section 3008(h) presents especially
fertile ground for legal controversy between the EPA and the regulated community. Although recent agency interpretations and limited case law cast
some light on the circumstances in which EPA can legally require corrective
action under section 3008(h), substantial uncertainties remain. This section
reviews certain related developments under section 3004(u) and section
3008(h) and sets the stage for consideration of some of the more important
unresolved issues under section 3008(h).
B. "Releases of Hazardous Waste"
Jurisdiction under section 3004(u) and section 3008(h) is predicated upon
"releases of hazardous waste."'65 Section 3004(u) also covers releases of
61.
See 47 Fed. Reg. 32,274, 32,299 (1982). See also 130 CONG. REC. H 11,129 (daily ed.
Oct. 3, 1984).
62. 42 U.S.C. § 6928(h)(1) (1990). Section 3008(h)(2) further provides that:
Any order issued under this subsection may include a suspension or revocation of authorization to operate under Section 3005(e) of this subtitle [42 U.S.C
§ 6925(e)], shall state with reasonable specificity the nature of the required corrective action or other response measure, and shall specify a time for compliance.
In addition, this section provides for a civil penalty not to exceed $25,000 for
each day of noncompliance with an order.
63. See NATIONAL RCRA CORRECTIVE ACTION STRATEGY, supra note 54.
64. Id. at 1069.
65. 42 U.S.C. §§ 6924, 6928 (1990).
1991]
CORRECTIVE ACTION
1339
"constituents. ' 66 Is a "constituent" different from a hazardous waste?
Must a "constituent" derive from a hazardous waste to be regulated under
either section 3004(u) or section 3008(h)? Moreover, does section 3008(h)
regulate releases of "constituents" even though, in contrast to section
67
3004(u), it does not mention them? The existing regulatory scheme, as
well as a recent decision in the United States Court of Appeals for the District of Columbia, 68 give weight to the view that the terms "hazardous
waste" and "hazardous constituents" are not synonymous. If they are not
synonymous, must a hazardous constituent derive from a hazardous waste
for purposes of triggering corrective action authority under RCRA? The
legislative history of section 3004(u) has been read to suggest that Congress
wanted the term "hazardous constituents" to be distinguishable from the
term "hazardous wastes" and that both categories of substances were subject
to section 3004(u) corrective action. 69 Section 3004(u), moreover, explicitly
70
covers releases of constituents from all solid waste management units, not
66. HSWA does not define the term "release." See the EPA discussion at 50 Fed. Reg.
28,702, 28,713, 28,716 (1985), including a discussion of "release" in Section 3008(h) context.
Under both provisions, the EPA takes the position that its corrective action jurisdiction now
covers releases to all media.
67. Compare the waste characteristics and listings contained in 40 C.F.R. pt. 261 with
app. VIII to that same section; (1989).
68. Natural Resources Defense Council, Inc. v. United States EPA, 907 F.2d 1146, 115962 (D.C. Cir. 1990). Although RCRA provides no definition of the term "hazardous constituent," the court confidently observed that it is "a term of art referring to a list of chemical
compounds compiled at 40 C.F.R. Part 261, Appendix VIII." Id. at 1159. The court went on
to observe that "[s]ince [hazardous constituents] are defined by molecular formulae without
reference to concentrations, a single molecule of such a chemical is a 'hazardous constituent.'
A hazardous waste, by contrast, is such only if various factors, including the concentration of
hazardous constituents, actually make it hazardous to human health or the environment." Id.
(footnote omitted) (emphasis in original).
69. This section originated in the Senate Bill, and, according to the companion Senate
Report, "[t]he requirement for corrective action applies not just to releases of hazardous
wastes, but also to releases of hazardous constituents." S. REP.No. 284, 98th Cong., 1st Sess.
32 (1983)(emphasis added), cited in Natural Resources Defense Council, Inc. v. EPA, 907
F.2d at 1170 (Wald, J., dissenting). In the EPA's proposed corrective action rule, hazardous
constituents will also include substances listed in 40 C.F.R. Part 264, Appendix IX (1989). See
55 Fed. Reg. 30,797, 30,809 (1990). Intrestingly enough, the preamble to EPA's proposed
corrective action rule appears to support the position that "hazardous constituents" must derive from hazardous wastes to trigger corrective action authority. EPA believes that use of the
phrase "hazardous wastes or constituents" (emphasis added) [in section 3004(u)] indicates that
Congress was particularly concerned that the Agency use the section 3004(u) authority to
address a specific subset of this broad category [i.e. "hazardous waste"], that is, hazardous
constituents. 55 Fed. Reg. 30,809. Note specifically EPA's use of the term "specific subset."
Elsewhere, in the body of the proposal rule, EPA specifically states that the term "hazardous
waste" includes "hazardous constituents." See, e.g., the proposed definition of "hazardous
waste" at 55 Fed. Reg. 30,874 (to be codified at 40 C.F.R. § 264.501). See also id. § 264.510.
As discussed later, the EPA apparently compensates for this narrowing of authority by taking the position that, for purposes of the corrective action program, the term "hazardous
waste" will be construed according to the broad statutory definition in RCRA rather than by
reference to wastes subject to EPA regulation. See 55 Fed. Reg. 30,809 and text accompanying footnotes 71-74.
70. On a related note, the United States Court of Appeals for the District of Columbia
Circuit recently held that certain mining industry wastes (Bevill wastes) and oil, gas, and geothermal production wastes (Bentsen wastes) exempted from regulation under RCRA were still
subject to corrective action requirements under § 3004(u). American Iron & Steel Inst. v.
EPA, 886 F.2d 390, 393-96 (D.C. Cir. 1989).
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just those containing hazardous waste.
Section 3008(h), on the other hand, speaks only in terms of "hazardous
wastes," and makes no mention of "constituents" or "hazardous constituents". If hazardous wastes and hazardous constituents are legally distinguishable, and if Congress is presumed to know the difference, then the
absence of the term "constituent" could mean that the EPA's authority
under section 3008(h) is narrower than under section 3004(u).
Not to be unduly restricted by statutory lapses, the EPA took the position
that Congress intended the broadest possible meaning of the "hazardous
waste" term as it is defined in RCRA. 7 1 The EPA's argument is that the
terms "hazardous waste" as used in section 3004(u) and section 3008(h) is
not limited to wastes which have been listed or which meet one of the characteristics. 72 The EPA's view instead, is that any kind of waste within the
broad statutory definition of "hazardous waste", may be reached by the corrective action authority. 73 As a result many common industrial wastes that
are not currently regulated hazardous wastes would be within the limits of
section 3008(h). Among other things, the EPA's broad interpretation of
wastes covered by its corrective action authority compensates for the absence of the terms "constituents" or "hazardous constituents" in section
3008(h). Whether the EPA's broad interpretation of the term "hazardous
wastes" in section 3008(h) will serve its intended purpose remains to be
74
seen.
C.
The Meaning of "Facility"
Under section 3004(u), corrective action may follow "all releases.., from
any solid waste management unit at a ... facility" seeking a final RCRA
permit. 75 Section 3008(h) authorizes the administrator to commence corrective action where "there is or has been a release ... from a facility author71.
55 Fed. Reg. at 30,809. The statutory definition of "hazardous waste" is set forth at
42 U.S.C. § 6903(5) (1988).
72. 55 Fed. Reg. at 30,809.
73. Id.
74. Some courts, however, already have upheld § 3008(h) authority in connection with
releases of "hazardous constituents." United States EPA v. Clow Water Sys., 701 F. Supp.
1345, 1356 (S.D. Ohio 1988); United States EPA v. Environmental Waste Control, Inc., 698 F.
Supp. 1422, 1429 (N.D. Ind. 1988).
75. 42 U.S.C. § 6924(u) (1988). According to the EPA, its § 3004(u) authority covers
facilities seeking any RCRA § 3005(c) permit, including permits under 40 C.F.R. pt. 264
(1989), and post-closure permits for facilities closing on and after January 26, 1983, as required
under 40 C.F.R. § 270.1(c) (1989). See 50 Fed. Reg. 28,701, 28,712 (1985). The EPA maintains that it also covers facilities subject to RCRA permits by rule. See 50 Fed. Reg. at 28,715
(1985). The EPA's interpretation of its corrective action authority under § 3004(u) in connection with post-closure permits and permits by rule has been upheld. American Iron, 886 F.2d
at 397-99. See also United Technologies Corp. v. EPA, 821 F.2d 714 (D.C. Cir. 1987). In its
recently proposed corrective action rule, the EPA would exempt the following type of permits
from coverage under the § 3004(u) corrective action program: permits for land treatment
demonstrations, emergency permits for immediate actions necessary to protect human health
and the environment, permits-by-rule for ocean disposal barges or vessels, and research, development and demonstration permits. 55 Fed. Reg. at 30,805-07.
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CORRECTIVE ACTION
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ized to operate under section 6925(e) ... ,"76 Obviously the term "facility" is
pivotal in construing the scope of the EPA's powers under these provisions.
Prior to the passage of HSWA, the EPA used the term inconsistently. Originally, facility was used in a very narrow sense to cover only those areas and
activities directly related to hazardous waste management. 77 It did not
cover, nor was it construed to cover, the entire tract of property surrounding
such an area. 78 In 1982 the EPA modified its usage of the term solely for
purposes of amended rules governing groundwater protection. 79 These rules
authorized corrective action for hazardous waste releases from regulated
land disposal facilities up to the limit of the property boundary.8 0 Hence,
under the 1982 rules, the term "facility" was synonymous with all the property under control of the owner or operator."'
In its first Final Codification Rule,8 2 codifying portions of HSWA, the
EPA took the position that, for purposes of section 3004(u), the term "facility" would be used in the same sense as defined in the 1982 rules.8 3 Accordingly, under section 3004(u), the EPA maintained that it could compel
corrective action for all hazardous releases from solid waste management
units84 on "all contiguous property under the owner or operator's control."'8 5 The EPA observed that the legislative history of section 3008(h)
76. 42 U.S.C. § 6928(h) (1988).
77. See 40 C.F.R. § 260.10 (1989). According to the pre-existing regulatory definition, a
"facility" is "all contiguous land, and structures, other appurtenances, and improvements on
the land, used for treating, storing, or disposing of hazardous waste. A facility may consist of
several treatment, storage, or disposal operational units (e.g. one or more landfills, surface
impoundments, or combination of them)." Id.
78. Id. See also United Technologies Corp., 821 F.2d at 721-23.
79. See 47 Fed. Reg. 32,273, 32,288-89, 32,311 (1982).
80. Id.
81. Id.
82. 50 Fed. Reg. 28,902 (1985).
83. See id. at 28,712.
84. The term "solid waste management unit" (SWMU) is not defined in HSWA. Congress, however, gave some useful guidance in the legislative history. The term is said to include any unit at a facility "from which hazardous constituents might migrate, irrespective of
whether the units were intended for the management of solid and/or hazardous wastes." H.R.
REP. No. 198, 98th Cong., 1st Sess., pt. 1, at 60 (1983). Congress also noted that the term
"unit" is "intended to be defined as in the preamble to the EPA regulations published on July
26, 1982 and as further defined by the EPA in the future." Id. Based on this guidance, the
EPA has stated its belief that a SWMU "at least encompasses the units identified in that
preamble, which refers to 'containers, tanks, surface impoundments, waste piles, land treatment units, landfills, incinerators, and underground injection wells.'" 50 Fed. Reg. at 28,712
(citing 47 Fed. Reg. 32,281 (1982)). Under § 3004(u), however, the EPA believes its corrective
action authority is limited to discernible units. The EPA believes that spills that cannot be
linked to SWMUs are not covered by § 3004(u). See 50 Fed. Reg. 28,712. "For example, a
spill from a truck traveling through facility would not constitute a release from a solid waste
management unit." Id. at 28,712-13. In the EPA's recently proposed corrective action rule,
which would be codified as 40 C.F.R. § 264.501, the term "solid waste management unit"
means "any discernible unit at which solid wastes have been placed at any time, irrespective of
whether the unit was intended for the management of solid or hazardous waste. Such units
include any area at a facility at which solid wastes have been routinely and systematically
released." 55 Fed. Reg. 30,874.
85. 50 Fed. Reg. 28,712 (1985). The EPA's position in this regard was upheld in United
Technologies Corp. v. EPA, 821 F.2d 714 (D.C. Cir. 1987). A review of the relevant legislative history, nevertheless, could be construed to support a narrower reading of EPA's author-
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notes that the power to issue corrective action orders is "a supplement to the
EPA's power to impose corrective action through permits."'8 6 Based on this
observation, the EPA concluded:
Since section 3004 has been amended to extend corrective action requirements to all solid waste management units at facilities seeking a
RCRA permit, the Agency interprets this mandate to authorize the issuance of corrective action orders to any interim status facility containing solid waste management units, including regulated
units, from
87
which there has been a release to the environment.
As the preceding quotation shows, the EPA may have initially believed
that section 3008(h) authority, like section 3004(u) authority, included only
releases from solid waste management units, or at least had to be predicated
on such a release. Whatever its initial posture, however, the EPA later concluded that, unlike section 3004(u), corrective action orders issued pursuant
to section 3008(h) were not limited to releases from solid waste management
units. 88 The EPA now even takes the position that its authority to impose
corrective action in RCRA permit proceedings is not limited to releases
from solid waste management units, as provided in section 3004(u). 9 In
recent RCRA administrative permit appeals, the EPA held that section
3005(c)(3), 90 the so-called omnibus provision, empowers the EPA to require
corrective action for releases not associated with solid waste management
units. 91 (The EPA originally proposed use of the omnibus provision for this
purpose in the 1986 National RCRA Corrective Action Strategy, 92 but it
was mentioned almost as an afterthought and comment was specifically requested.) 93 The EPA, furthermore, reaffirmed its support for this broad inity. In its discussion of the EPA's authority to issue corrective action orders under § 3008(h),
the Conference Committee made the following statement:
Examples of where such orders might be needed include ground-water contamination from tanks (where the current regulations do not appear to require a
cleanup), from units subjected to limited exemptions (e.g., wastewater treatment
units), or from "non-regulated" units (i.e., units not subject to current corrective
action requirements) at land disposal facilities.
CONF. REP. No. 1133, 98th Cong., 2d Sess. 112, reprinted in 1984 U.S. CODE CONG. & ADMIN. NEWS 5649, 5683. This statement suggests that Congress had in mind releases from
discernible units even under § 3008(h).
86. 50 Fed. Reg. 28,716 (quoting 130 CONG. REC. Hl1,135 (daily ed. Oct. 3, 1984)).
87. Id.
88. See THE INTERIM STATUS CORRECTIVE ACTION AUTHORITY, supra note 54, at 8;
NATIONAL RCRA CORRECTIVE ACTION STRATEGY, supra note 54, at 1069.
89. 55 Fed. Reg. 30,809.
90. 42 U.S.C. § 6925(c)(3) (1988). This section provides: "Each permit issued under this
section shall contain such terms and conditions as the Administrator (or the State) determines necessary to protect human health and the environment." Id. See also, 40 C.F.R.
§ 270.32(b)(2) (1989).
91. See In the matter of: Amerada Hess Corp. Port Reading Refinery, RCRA Permit No.
NJD 045-445-483, RCRA App. No. 88-10 (EPA August 15, 1989), 1989 RCRA Lexis 25; In
the Matter of: American Cyanamid Co. (Santa Rosa), RCRA Permit No. FLD 057-231-821,
RCRA App. No. 88-22 (EPA undated); In the Matter of: Shell Oil Co., RCRA Permit No.
WAD-009-275-082, RCRA App. No. 88-48 (EPA March 12, 1990), 1990 RCRA Lexis 3.
92. NATIONAL RCRA CORRECTIVE ACTION STRATEGY, supra note 54, at 1069.
93. Id.
CORRECTIVE ACTION
1991]
1343
94
terpretation in its recently proposed corrective action rule.
It nevertheless remains uncertain whether the inclusion of specific corrective action powers under section 3004(u) supersedes the more general grant
of authority under § 3005(c)(3). Indeed, the EPA's expansive reading of section 3005(c)(3) appears to render section 3004(u) superfluous. Consequently, for purposes of corrective action under RCRA, the EPA considers a
facility to be an imaginary plane covering the surface of a given tract of
property. Any vertical or horizontal "release" can subject the
owner/operator to RCRA corrective action requirements. As a practical
matter then, any conceivable release of regulated waste materials into any
environmental medium can, in the EPA's view, be the subject of corrective
action under RCRA. 95
D.
The "Interim Status" PrerequisiteUnder Section 3008(h)
Congress clearly intended that corrective action orders only be issued
against facilities "authorized to operate" under the interim status authorities
of RCRA. 96 The statute, however, is not clear about how this authority
relates to facilities that were authorized to operate under interim status authority, but are not currently authorized 97 either because interim status was
99
lost by operation of law 98 or because it was terminated by agency action.
The statute also does not address whether corrective action orders can be
issued at facilities which should have been authorized to operate, but were
not so authorized either because of technical defects in compliance with the
statutory prerequisites for interim status"° ° or because the facility was
clearly operating illegally. This aspect of the statute may not pose a problem
for the EPA in instances where facilities that have not possessed interim
101
and, therestatus are still subject to post-closure permitting requirements,
10 2
3004(u).
section
under
fore, corrective action requirements
Courts that have considered the interim status prerequisite have ruled favorably to the EPA. In United States v. Environmental Waste Control,
Inc., 103 the court held that the facility was subject to section 3008(h) even
though interim status had terminated. In the same vein, in United States v.
94. 55 Fed. Reg. 30,797, 30,809 (1990).
95. Id.
96. 42 U.S.C. § 6928(h) (1990).
97. The tense of the statutory language, of course, can have a profound impact on its
effect as has been recently seen in the area of citizen suits under § 505 of the Clean Water Act,
33 U.S.C. § 1365 (1988). See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., 484
U.S. 49 (1987).
98. For the statutory provisions regarding automatic termination of interim status see 42
U.S.C. § 6925(c), (e) (1988).
99. See 40 C.F.R. § 270.73 (1989) (regarding termination of interim status).
100. For example, failure to timely submit the preliminary notification required by
§ 6925(e)(l)(B) can defeat interim status.
101. 42 U.S.C. § 6925(c) (1988); 40 C.F.R. § 270.1(c) (1989).
102. See American Iron & Steel Inst. v. United States EPA, 886 F.2d 390, 397-98 (D.C.
Cir. 1989) (holding that corrective action requirements apply to facilities subject to post-closure permitting or permits by rule).
103. 710 F. Supp. 1172 (N.D. Ind. 1989).
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[Vol. 44
Indiana Woodtreating Corp.,04 the court held that section 3008(h) applies to
facilities that failed to attain interim status.105 Nevertheless, due to the peculiar wording of section 3008(h) on this point, controversy should continue
in this area.
IV.
IS SECTION 3008(h) A LIABILITY PROVISION?
On its face, section 3008(h) does not provide any clear standard for determining the nature or object of corrective action liability. It makes no reference as to the appropriate recipient of a corrective action order or what
connection a recipient must have to the facility. In light of these significant
omissions, the provision could be construed to grant only a remedy to the
administrator where a release of hazardous waste has occurred, thereby forcing the courts to look to other parts of the statute to establish substantive
liability.106 In this respect, section 3008(h) would resemble section 106 of
CERCLA.10 7 That section, in similarity to section 3008(h), grants the administrator of EPA (through the President) the right to issue an administrative order or institute a civil action against unspecified parties for abatement
of releases, or threatened releases, of hazardous substances under certain circumstances. 10 8 In United States v. Outboard Marine Corp.,109 the court observed that, "Read plainly, Section 106 does not appear to create liability in
any party. It authorizes lawsuits and injunctions, but it does not indicate
who may be sued or enjoined; also, it does not specify what one must do to
be subject to suit or injunction." 110
The court went on to observe that some other authority would be necessary to impose liability."'l Although the court did not precisely define the
source of such liability, it held that "[w]hatever the source," it would have to
2
include section 107 of CERCLA, the basic statutory liability provision."1
A similar debate about RCRA section 7003 also has raged. In United
States v. Diamond Shamrock 1"3 the court held that section 7003 was both
jurisdictional and substantive.' '4 The court reasoned that "the standard for
104. 686 F. Supp. 218 (S.D. Ind. 1988).
105. Id. at 223.
106. The author acknowledges the contribution of Carol L. Dorge, Esq. to the instant
analysis.
107. 42 U.S.C. § 9606 (1988).
108. Interestingly enough, one court recently ruled that, in comparison with CERCLA
§ 106, § 3008(h) does not necessarily preclude pre-enforcement judicial review of an administrative order. Sinclair Oil Co. v. Scherer, 20 Envtl. L. Rep. (Envtl. L. Inst.) 20,009 (D. Wyo.
1989).
109. 556 F. Supp. 54 (N.D. Ill. 1982).
110. Id. at 55.
111. Id.
112. See also, United States v. Bliss, 667 F. Supp. 1298, 1313 (E.D. Mo. 1987); United
States v. Ottati & Goss, Inc., 630 F. Supp. 1361, 1393 (D.N.H. 1985); United States v. Conservation Chem. Co., 619 F. Supp. 162, 184 (W.D. Mo. 1985); Cadillac Fairview/Cal., Inc. v.
Dow Chem. Co., 21 Evn't Rep. Cas. (BNA) 1108 (C.D. Cal. 1984) rev'd in part, 840 F.2d 691
(9th Cir. 1988). But see United States v. Stringfellow, 20 Env't Rep. Cas. (BNA) 1905 (C.D.
Cal. 1984).
113. 17 Env't Rep. Cas. (BNA) 1329 (N.D. Ohio 1981).
114. Id. at 1332.
1991]
CORRECTIVE ACTION
1345
determining the impropriety of the conduct sought to be enjoined ... is
whether a hazardous waste presents 'an imminent and substantial endangerment of health or the environment.' "115
A determination of whether section 3008(h) is jurisdictional or substantive
would not be purely academic since, among other things, it would have a
bearing on who is liable for corrective action. If section 3008(h) is only jurisdictional, and if a basis for liability must be found in other parts of RCRA,
then perhaps a section 3008(h) order could only be issued against current
owners and operators, the only class of parties logically fitting under both
section 3008(h) and other regulatory provisions of the statute. If section
3008(h) is substantive, however, and does not depend on other provisions of
RCRA, like section 7003, it could theoretically be expanded to any party
linked to an interim status site, conceivably including off-site generators and
transporters.
V.
WHO Is LIABLE FOR SECTION 3008(h) CORRECTIVE ACTION?
At the very least, section 3008(h) presumably grants, or was intended to
grant, the EPA the power to require the present owner or operator of an
interim status facility to take corrective action at the facility.' 16 Does it also
require a present owner or operator to remedy the "sins" of its predecessors
when the present owner or operator played no role in the creation of the
relevant conditions and may not have even been aware of them prior to a
regulatory investigation? The relevant legislative history can be read to suggest that Congress intended current owners and operators to be responsible
for correcting past disposal problems without regard to when they occurred. 17 From this observation, one may infer that Congress intended to
impose corrective action responsibilities on present owners or operators
without regard to causation or culpability, or, in other words, on a strict
liability basis. In addition, that the present owner or operator would be
forced to shoulder the entire corrective burden could be construed as a congressional expectation that the liability would also be joint and several."18 In
the final codification rule, the EPA appears to adopt this perspective, arguing that the present owner or operator can pursue other responsible parties
in private party cost recovery actions." 9
A more interesting question is whether the EPA also has the authority to
issue a corrective action order against prior owners or operators. Based on
the nature of the corrective action scheme, such authority might be implied,
although with greater difficulty. Under the original version of RCRA sec115.
United
116.
117.
CODE
Id. See also Jones v. Inmont Corp., 584 F. Supp. 1425 (S.D. Ohio 1984). Contra,
States v. Midwest Solvent Recovery, Inc., 484 F. Supp. 138 (N.D. Ind. 1980).
42 U.S.C. § 6928(h).
See H. R. CONF. REP. No. 1133, 98th Cong., 2d Sess. 110-12, reprinted in 1984 U.S.
CONG. & ADMIN. NEWS 5649, 5681-83.
118.
stances
810-11
119.
The courts have consistently found joint and several liability in analogous circumunder CERCLA § 107. E.g., United States v. Chem-Dyne Corp., 572 F. Supp. 802,
(S.D. Ohio 1983).
50 Fed. Reg. 28,716.
SOUTHWESTERN LAW JOURNAL
1346
[Vol. 44
tion 7003, no guidance was given as to the class of parties subject to an
action for abatement of an imminent and substantial endangerment. Prior to
the 1984 amendments to RCRA's imminent hazard provision, 120 uncertainty surrounded the identity of parties subject to order or suit for the
abatement of an imminent hazard action. 121 The courts ultimately enlarged
the class of liable parties beyond the present owner or operator to any person
who had a causal link to the site, including non-negligent, off-site generators. 122 Some courts held, for example, that the basic legislative purpose and
pre-existing common law duties formed a basis for imposing such liability
beyond present owners and operators. 123 The statute was subsequently
amended to do precisely that. Given some of the obvious similarities between the pre-1984 version of section 7003 and the current section 3008(h),
the issue of which parties may be liable for corrective action under section
3008(h) does not seem completely academic. Congress, therefore, may be
forced to clarify this issue in the context of section 3008(h).
VI.
COST RECOVERY UNDER SECTION
3008(h)
The prospect of imposing liability for all necessary corrective action on
the current owner or operator of a facility without regard to causation raises
significant fairness questions, if the liability is strict, joint, and several. Prior
to the explicit addition of a right of contribution for CERCLA response
costs in 1986,124 several courts had held a right of contribution among responsible parties was implicit in CERCLA's statutory scheme of strict, joint,
25
and several liability.'
Some courts held that the right of contribution under CERCLA was an
implied statutory right. 126 Others held that such a right existed as a function of federal common law.' 27 All of these courts, however, agreed that in
light of CERCLA's imposition of strict, joint, and several liability, a right of
contribution among responsible parties was a logical and necessary goal of
equitable relief. 128 Liability under RCRA section 7003 has also been held to
120. 42 U.S.C. § 6973 (1988).
121. E.g., United States v. Waste Indust., 556 F. Supp. 1301 (E.D.N.C. 1982), rev'd, 734
F.2d 159 (4th Cir. 1984); United States v. Northeastern Pharmaceutical & Chem. Co., 579 F.
Supp. 823 (W.D. Mo. 1984); United States v. Price, 523 F. Supp. 1055 (D.N.J. 1981). The
1984 amendments explicitly specified that § 7003 could impose liability on non-negligent, offsite generators.
122. E.g., United States v. Hardage, 26 Env't Rep. Cas. (BNA) 1049 (W.D. Okla. 1987);
United States v. Bliss, 667 F. Supp. 1298, 1313 (E.D. Mo. 1987). Contra United States v.
Wade 546 F. Supp. 785, 788-92 (E.D. Pa. 1982).
123. United States v. Price, 523 F. Supp. 1055 (D.N.J. 1981), aff'd, 688 F.2d 204 (3d Cir.
1982). Accord United States v. Stringfellow, 20 Env't Rep. Cas. (BNA) 1905 (C.D. Cal. 1984);
United States V. Reilly Tar & Chemical Corp., 546 F. Supp. 1100 (D. Minn. 1982).
124. 42 U.S.C. § 9613(f) (1988).
125. E.g., Marden Corp. v. C.G.C. Music Ltd., 804 F.2d 1454, 1457 n.3 (9th Cir. 1986)
(collecting cases).
126. E.g., United States v. A & F Materials Co., Inc., 578 F. Supp. 1249, 1254 (S.D. Ill.
1984).
127. E.g., United States v. New Castle County, 642 F. Supp. 1258, 1268-69 (D. Del. 1986).
128. See C. SCHRAFF & R. STEINBERG, RCRA AND SUPERFUND 16 (1989); Note, The
1991]
CORRECTIVE ACTION
1347
be strict, 129 joint, and several. 130 Accordingly, at least one court has recognized a right of contribution under RCRA section 7003.131
Given the extensive nature of the obligations that conceivably can be imposed upon firms or individuals under section 3008(h) for hazardous waste
management problems created in the distant past,132 recognition of a right of
contribution or cost recovery under section 3008(h) would be reasonable.
Such a right would be a valuable supplement to the existing CERCLA contribution right for at least two reasons. First, CERCLA's petroleum exclusion 133 could preclude petroleum-based, characteristic hazardous wastes
from being the subject of contribution actions. Second, RCRA corrective
action activities, as presently constituted, will not necessarily be conducted
in substantial consistency with the National Contingency Plan, a prerequisite to cost recovery under CERCLA. 134 Indeed, recognition of cost recovery rights would promote corrective action programs since it would serve to
increase the pool of parties available to pay for such work.
VII.
CONCLUSION
The corrective action provisions of RCRA doubtlessly will continue to
affect industry into the foreseeable future. The EPA's proposed rulemaking
suggests that it is prepared to exercise considerable flexibility in implementing the program. 135 This may well place EPA on a collision course with
environmentalists. 136 The preceding discussion should illustrate that, in the
controversies which can be expected to develop during finalization of the
proposal and implementation of the program, significant legal issues remain.
These issues go to the heart of the program. None is perhaps more significant than how the burden of cleanup is to be distributed. The EPA, and
perhaps Congress, should focus on promoting equitable allocation of the
costs associated with remedying all the problems of the past. This would
improve both the economic efficiency and the environmental benefits of the
program.
Right to Contribution for Response Costs Under CERCLA, 60 NOTRE DAME L. REV. 345
(1985).
129. E.g., United States v. Aceto Agricultural Chem. Corp., 872 F.2d 1373, 1377 (8th Cir.
1989).
130. See United States v. Ottati & Goss, Inc., 630 F. Supp. 1361 (D.N.H. 1985); United
States v. Conservation Chem. Co., 619 F. Supp. 162, 199 (W.D. Mo. 1985).
131. See United States v. Waste Industries, Inc., 16 Envtl. L. Rep. (Envtl. L. Inst.) 20,501
(E.D.N.C. 1985).
132. See Huffman, Karam, Bailey, Estimating the Costs of CorrectiveAction at Land Disposal Facilities, I Remediation 19 (New York, Executive Enterprises Publications Co., Inc.,
1990).
133. 42 U.S.C. § 9601(14) (1988).
134. 42 U.S.C. §§ 9607(a)(4)(A), (B) (1988). The National Contingency Plan (NCP) is
published at 40 C.F.R. § 300 (1989). The NCP provisions relating to private party cost recovery actions under CERCLA are set forth at 40 C.F.R. § 300.700 (1989).
135. Chambers, Overview of RCRA Corrective Action Requirements, 26 Chem. Waste Lit.
Rept. 723, 733 (1990).
136. Id. at 734.